CA1: It’s okay to Begay outside of of the ACCA

US v. Herrick, No. 07-1553 (10/17/08) vacates a sentence for being a felon in possession of a firearm in violation of Title 18 U.S.C. §§ 922(g)(1) and 924(a)(2) under Begay v. United States, 553 U.S. ___, 128 S.Ct. 1581 (2008).  But, what really matters here is whether a Wisconsin conviction for negligent operation of a motor vehicle can be treated as a “crime of violence” pursuant to Guidelines section 4B1.2(a). The First concludes that “There is no possible formulation of the Wisconsin motor vehicle homicide statute that would criminalize conduct that would not constitute a violent felony under the formal categorical approach to Guidelines.”  However, after the initial briefing, Begay came out.   

The First then concludes that because the Wisconsin requires a mens rea below that that the Begay majority concluded fall under the residual clause in 18 U. S. C. §924(e)(2)(B)(ii).  Therefore, “conclude only that vehicular homicide involving criminal negligence does not involve the requisite purposeful, intentional or deliberate conduct” will not trigger 4B1.2.

The defendant seems to have pretty good arguments as to why he wasn’t really possessing weapons: his uncle and wife were possessing them for protection or hunting.